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Friday, March 18, 2011

NHL Discipline: Suspended in Disbelief

A frequent topic of discussion in the NHL right now is supplemental discipline. Head shots or not, the league has been under fire from all angles for the seemingly arbitrary and strange 'dartboard' of justice. Two similar plays can warrant a two game suspension, a 10 game suspension, or maybe not even a minor penalty.

The decisions have always seemed vexing and overly arbitrary to me. The NHL brass, or at least the chief disciplinarian Colin Campbell and commissioner Gary Bettman will often cite mitigating circumstances such as the lack of history of offenses for the player in question, the score of the game, the time remaining in the game, etc. While some of those should probably enter the equation to some level, the NHL could really benefit from some fundamental theories of punishment from people that have studied it within our society.

In fact, the NHL could learn a few lessons from Criminologists and law makers. Have a look at some of the theories and principles below. Most will be appear to be common sense and probably are, but these fundamental tenets of punishment should be pretty easy to follow - but often are not.

Punish the Intent and the Act, Not the Injury
Mens Rea and Actus Reus: Latin for guilty mind and guilty act, both almost certainly have to be present in Criminal Law. Naturally there is the premise that one is innocent until proven guilty. What would be required in a hockey play then would be to prove (either beyond a reasonable doubt or on a balance of probability) that the offending player had the intent to commit the injurious act, and physically caused the act. Let's not get too philosophical though on this one. Instant replay solves most of that and this principle is fairly well applied.
Accidents seldom result in suspensions and those situations are usually accepted by fans. One good example of a gray area however may be the recent Zdeno Chara hit on Max Pacioretty of the Montreal Canadiens. There will be debate for some time as to Chara's intent on that play. Only he truly knows.

Where the NHL often falls down though, is in not punishing the malicious intent or the act, but more often the injury sustained. Let's look at why we're punishing the offending player. It's pretty safe to assume that the punishment doled out is the result of the intent and the act (the mens rea and actus reus described above). If there's a chance it was an accident, the punishment should and probably will be lighter. However, consider some key instances where the punishment is predominantly based on how severe the injury to the other person is.

I suppose you could argue these situations exist in a court of law, such as where the offender pays reparations/damages as opposed to a punitive sentence. Consider though that the punishment levied by the NHL is not intended to appease the victim or their team. It's aimed at punishing the offender to a level that he will think twice before re-offending (a specific deterrent - more on that later).

Instead of upholding a principle of measuring the severity of punishment by the severity of the act, the injury suffered by the opposing player is sometimes taken into account, while other times it is completely ignored. (just ask Marc Savard, or Sidney Crosby). On this topic, the NHL should make up it's mind. Are they trying to match the punishment to the act, or the outcome?

A Clean Record and a Clean Pass
It doesn't take a Criminologist or lawyer to figure this one out. In fact, just ask Henrik Sedin. The reigning league MVP recently weighed in on the Zdeno Chara hit on Max Pacioretty, and aptly pointed out the NHL's silly reasoning that no further discipline was warranted for Chara in part because he did not have a previous record. The obvious response to that statement is "how does one get a record then if they don't have one previously?" Indeed this is an issue that impacts our society daily and is the reason why lawmakers strive to enforce the law equally to all people, regardless of personal history.

Imagine a young man arrested by police for assaulting a woman. If he has a previous record, perhaps the officer chooses to press charges. If he isn't known to police previously, perhaps he's dropped off at his parent's door and given a warning. That may sound like a harsh example to some, but that's essentially the policy the NHL employs with suspensions, and is largely what a player with a reputation like Matt Cooke is able to avoid a lengthy record which perhaps should be quite lengthy.

What the NHL can learn from this principle is to apply the law equally to all players. If you wish to treat repeat offenders more seriously go ahead, but don't let others off the hook entirely.

Star Players and the Media
When meting out punishment, you have likely heard the terms specific or general deterrence. Specific deterrence is a penalty shaped to prevent the offender from re-offending, while general deterrence is a penalty geared to serve as an example for other members of society (think capital punishment).The NHL as you might expect also botches this one.

Star players are seldom made an example of. In fact, they usually are let off the hook repeatedly - as can be argued with Alexander Ovechkin. His infractions on Daniel Briere and Sergei Gonchar incurred no supplemental discipline, despite the league's opportunity to send a message to the entire league that if they're willing to suspend one of the league's superstars, you can be sure you will receive the same amount of time if you commit a similar act.

Star treatment isn't the only issue at play here. The NHL also succumbs to media pressure whether it will admit it or not. Anyone following the NHL back in 2004 remembers Todd Bertuzzi's punch to Steve Moore. While the sports media waited for the duration of Bertuzzi's suspension to come down, the mainstream media picked up the story and that only drove the estimates upwards.

Some may argue that the opposite is also true. The Bertuzzi incident attracted all kinds of negative attention for the league, and the large suspension grabbed more headlines. Perhaps that is why in 2011 we haven't seen a suspension come close to Bertuzzi's in length. Too many of these objectionable plays are swept under the rug to avoid media attention - perhaps prompting Air Canada and Via Rail to threaten to pull the plug on their support of the NHL.

What the NHL should do is enforce their policies equally on all players in terms of severity, but be sure to impress upon every player that no one is above the law. These sentiments are echoed by others. At the same time, no one should be 'made an example of' just because they are expendable/less talented. The NHLPA will likely take up that argument, and so they should (think Trevor Gillies) The NHL should also learn from the Air Canada and Via Rail examples that their advertisers can be as passionate as their fans, and they are also not stupid. They watch the games and do not just read headlines.

There are lots of lawyers in the NHL, and a lot of former players running the show. You'd think that combination would yield good results when it comes to discipline. Not so. It seems like former players are making philosophical decisions about punishment, while the lawyers are analyzing the way the game is played. That seems backwards.

Use some common sense principles that have prevailed in Western Law for 1,000 years, and a lot of complaints will go away. No one is pretending that handing out discipline is an easy job, but there sure is not a lot of transparency or justification these days.Publishing and accurately enforcing some basic principles sure might help, but until that happens, let the dartboard of justice continue.